October 22, 2017

Colorado Court of Appeals: Findings of Inventory Search of Vehicle Need Not Be Suppressed Because Search Was Lawful

The Colorado Court of Appeals issued its opinion in People v. Camarigg on Thursday, September 7, 2017.

Driving Under the Influence of Alcohol—Impound—Vehicle—Inventory Search—Warrant—Prosecutorial Misconduct—Burden of Proof—Beyond a Reasonable Doubt—Evidence—Intent to Manufacture Methamphetamine.

After defendant was arrested for driving under the influence of alcohol (DUI), officers impounded his vehicle because it was parked in front of a gas pump at a gas station. The officers conducted an inventory search of the vehicle and discovered a sealed box containing items commonly used in the manufacture of methamphetamine. Based on those items, they obtained a warrant to search the vehicle and found additional items used to manufacture methamphetamine. Defendant moved to suppress the evidence obtained from the search and warrant. The trial court denied the motion. A jury convicted defendant of DUI, careless driving, and possession of chemicals, supplies, or equipment with intent to manufacture methamphetamine.

On appeal, defendant argued that the trial court should have excluded evidence discovered in the inventory search of his vehicle and under the subsequently issued warrant. A vehicle is lawfully taken into custody if the seizure is authorized by law and department regulations and is reasonable. Inventory searches are an exception to the warrant requirement and are reasonable if (1) the vehicle was lawfully taken into custody; (2) the search was conducted according to “an established, standardized policy”; and (3) there is no showing that police acted in bad faith or for the sole purpose of investigation. Here, the decision to impound the vehicle was reasonable, and the inventory search was conducted according to standard policy and was constitutional. Because the inventory search was constitutional, evidence obtained under the subsequently issued warrant could not have been tainted.

Defendant next argued that the prosecutor improperly quantified the concept of reasonable doubt and lowered the burden of proof by using a puzzle analogy during closing argument. The prosecutor used a puzzle analogy to convey the difference between proof beyond a reasonable doubt and proof beyond all doubt, which other courts have found permissible. Further, the prosecutor used the analogy to rebut the defense argument that evidence of defendant’s guilt was speculative. The Court of Appeals concluded there was no reasonable possibility that the prosecutor’s analogy contributed to defendant’s conviction. Additionally, the jury was properly instructed on the reasonable doubt standard. Therefore, any impropriety in the prosecutor’s analogy was harmless beyond a reasonable doubt.

Lastly, defendant contended there was insufficient evidence that he intended to manufacture methamphetamine. There was sufficient circumstantial evidence from which a rational jury could conclude beyond a reasonable doubt that defendant intended to manufacture methamphetamine.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Protective Sweep Not Permissible Absent Suspicion of Another Person Hiding in Home

The Tenth Circuit Court of Appeals published its opinion in United States v. Nelson on Thursday, August 17, 2017.

A warrant was issued for the arrest of Stephen M. Nelson after he violated terms of his probation. Although Nelson’s whereabouts were originally unknown, the United States Marshals Service were informed that Nelson often spent time at a home owned by Antonio Bradley. Bradley was instructed to inform the Deputy Marshal when Nelson arrived at his home, which Bradley ultimately did, giving consent for deputy marshals to “go inside and search for” Nelson.

Upon entry, the deputies searched three of the four levels of the home before one deputy saw movement on the first floor. One deputy began shouting for Nelson to come out and show himself. After Nelson complied with the orders, he was put into custody and brought to the second floor as one deputy searched the first floor. The deputy found two firearms under a pile of clothing on a bed. Because Nelson had two previous felony convictions, the government charged him with possession of a firearm by a felon.

Nelson moved to suppress the firearms charge, arguing that the deputies violated the Fourth Amendment by continuing to search the residence after arresting him. In response, the government made two arguments relevant on appeal: (1) Bradley, the owner of the residence, consented to the search; and (2) the deputy lawfully searched the first level under the protective-sweep doctrine. Under the first exception to the general rule that police must obtain a warrant to search a home, the police may, in conjunction with an arrest in a home, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Under the second exception, police may conduct a “protective sweep” beyond areas immediately adjoining the arrest if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

The district court concluded that the protective sweep was valid under the second prong. Nelson appeals, arguing that the district court erred in relying on the second prong because the deputy had no reason to believe that there was a third person hiding in the residence.

This court holds that under the second prong, the government is required to articulate specific facts giving rise to the inference of a dangerous third person’s presence. There could always be a dangerous person concealed within a structure, but that cannot justify a protective sweep. The government argues that the deputies were informed that there was another person in the home, which, this court finds, would be the sort of specific, articulable information that might have permitted the deputy to search the first level after arresting Nelson; however, for that information to be relevant, the deputy had to have it before he conducted the protective sweep, which he did not. The court found that the first-level search was not a valid protective sweep under the second prong.

Next, the government argues that the first prong validates the first-level search under two theories: (1) the deputies arrested Nelson on the first level, so the search of the bed on that level occurred immediately adjacent to the arrest; and (2) even if the deputies arrested Nelson on the second level, the first level nevertheless immediately adjoins the second level. This court declines to consider the arguments, as the government failed to make the specific arguments below, and courts do not generally address arguments presented for the first time on appeal.

The government then argues that Owens’ search “was close enough to the line of validity that an objectively reasonable officer would have acted” in the same way. The court declines to consider this argument because the Supreme Court has “limited [the good-faith] exception to circumstances where someone other than a police officer has made the mistaken determination that resulted in the Fourth Amendment violation.” The government neither suggests that the deputies relied on a third party’s mistake in deciding to search the first level, nor explains why this case might present the “very unusual circumstances” that would convince us to “extend th[e] good-faith exception beyond its pedigree.”

Finally, the government argues that Bradley consented to a search of his entire residence. Whether a search remains within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances by the trial court. Although the government raised this argument below, the district court declined to conduct the fact finding necessary for us to resolve this issue on appeal. We therefore remand for it to do so.

The Tenth Circuit VACATED the district court’s order denying Nelson’s motion to suppress and REMANDED for the district court to determine whether the deputies exceeded the scope of Bradley’s consent when they continued searching his residence after they arrested Nelson.

Tenth Circuit: Officers Executing Warrant Acted in Objectively Reasonable Reliance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Russian on Tuesday, February 21, 2017.

The Tenth Circuit Court of Appeals had to determine if the good faith exception to the exclusionary rule was properly applied in the case where police searched two cell phones belonging to the appellant after his arrest without first obtaining a valid search warrant. At trial, Mr. Russian moved to have evidence obtained from the phones suppressed for lack of particularity. The district court denied the motion, and sentenced Mr. Russian to 137 months’ incarceration. Mr. Russian appealed, claiming that the district court erred in denying his motion to suppress the phone evidence, and claiming that the 137-month sentence was above the maximum permitted by statute.

The case stems from an incident beginning in Missouri, where police received a 911 call concerning a man matching Mr. Russian’s description threatening two women with a machete and handgun. When police arrived, Russian fled, beginning a high-speed chase into Kansas. Upon Russian’s arrest, Deputy Wilson searched Russian, and found a red and black phone in his possession. Deputy Wilson then found a second phone in Russian’s vehicle, both of which he entered into evidence. Deputy Wilson later applied for a warrant to search Russian’s residence, as well as both the contents of both phones already in police possession, The state district court warrant authorized the search of cell phones that could be used to commit the crimes, and described the locations to be searched, but did not authorize the search of the phones already in police possession.

The Fourth Amendment provides that no citizen will be subjected to unreasonable search and seizure. However, the court added, that even these protections are subject to the harmless error rule, where a search may be upheld if the error is so unimportant and insignificant that they may be deemed harmless beyond a reasonable doubt, not requiring the automatic reversal of the conviction. The court stated that a search warrant must, in addition to probable cause, describe with particularity the place to be searched, and the persons or things to be seized. In this case, the court said that there is little doubt that the search warrant was invalid for lack of particularity, as it did not identify the phones or the data on those phones to be searched.

Although the warrant was invalid, the court still upheld the denial of Mr. Russian’s motion to suppress under the good faith exception. The good faith exception applies to an otherwise invalid search warrant where the officer’s reliance on the warrant was objectively reasonable under the circumstances, and asks if a reasonably well-trained officer would have known the search was illegal despite the warrant’s authorization. However, the court noted that the government is not entitled to the exception when the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officer cannot reasonably presume it to be valid.” In analyzing Deputy Wilson’s search, the court determined that because his affidavit specifically described the phones, the warrant referenced the affidavit, and the exclusion of the evidence would not serve the purpose of the exclusionary rule (to prevent police misconduct) the good faith exception applied.

As to Russian’s second claim, the court agreed that district court erred in relying on a guidelines range that improperly took into account a fifteen year old felony conviction that was too old to be included in the sentencing range. The court also agreed with Russian that the court erred in imposing a 76-month sentence, as it is above the 60-month maximum imposed by statute.

The Tenth Circuit affirmed Russian’s convictions, but remanded for resentencing for three of the counts based on the improperly calculated guidelines range.

Tenth Circuit: Contents of Vehicle Search Suppressed Where Search Illegal at Inception

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 miles per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going form California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

Tenth Circuit: Unofficial Head of Small Town Police Department Did Not Have Final Policymaking Authority for Department

The Tenth Circuit Court of Appeals issued its opinion in Patel v. Hall on March 1, 2017.

On April 20, 1011, Officers Bubla and Hall arrived at Mr. Austin’s auto-repair business pursuant to a call from Ms. Austin regarding suspicious activity by their landlord, Plaintiff Chetan Patel. The officers were informed that several cars that Plaintiff brought in were missing their Vehicle Identification Number (VIN). Additionally, Mr. Austin told the officers that he suspected the VINs had been switched on certain vehicles.

The officers contacted the County Attorney’s Office after speaking with the Austins and were informed that the officers could permit the Austins to remove their belongings from the premises and seal the building pending a search warrant. The officers also photographed the trucks with missing or replaced VIN plates which Mr. Austin had pointed out to them. The officers sealed the building. The next morning, Mr. and Ms. Austin and their son submitted written statements to the police and swore to their truthfulness in front of a notary. The statements included instances where the Plaintiff told Mr. Austin he needed to remove Plaintiff’s vehicles off the premises “because they were starting to draw the state’s attention.”

Officer Hall was unable to immediately obtain a search warrant, as none of the judges in Big Horn County were available. Officer Hall contacted the County Attorney’s Office to inquire whether there was probable cause to arrest Plaintiff because Officer Hall believed Plaintiff might remove evidence from the premises. The County Attorney determined that there was probable cause to justify a warrantless arrest for felony VIN fraud. Plaintiff was arrested and the county court issued an arrest warrant the next day, along with a search warrant for the premises.

Pursuant to the search warrant, the officers discovered a syringe and white powder on a table in the premises. The officers left the building and obtained a new warrant to search for drugs as well as VIN plates inside the building. In total, the officers seized two loose VIN plates, a truck with switched VIN plates, a truck with a missing VIN plate, and an empty insurance envelope which was found laying on the floor with a claim number written on it. The officers also photographed several documents with VIN numbers written on them.

The charges against Plaintiff for felony VIN fraud were dismissed on October 4, 2011. In April 2014, Plaintiff filed the §1983 complaint. Defendants argued they were entitled to qualified immunity. Plaintiff supplied an affidavit purportedly signed by Mr. Austin. Plaintiff’s two attorneys also submitted affidavits stating they met with Plaintiff and Mr. Austin when Mr. Austin allegedly made statements that differed from his original sworn police witness statement.

The district court granted summary judgment for Defendants and refused to consider the purported Mr. Austin affidavit. The district court also disregarded Plaintiff’s attorneys’ affidavits holding that the affidavits would make the attorneys material witnesses to the case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The district court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because (i) Mr. Austin consented to the initial search, (ii) the officers had probable cause to seize the shop while they obtained a search warrant, (iii) the subsequent search was conducted pursuant to a search warrant, and (iv) there was sufficient probable cause for Plaintiff’s arrest. The district court also rejected Plaintiff’s claim that the search was beyond the scope of the search warrant because Plaintiff had not shown the officer’s actions violated clearly established law. Finally, the district court dismissed Plaintiff’s state law claims with prejudice based on a procedural deficiency by Plaintiff and the state defense of qualified immunity.

The Tenth Circuit first addressed the district court’s grant of summary judgment in favor of Officer Hall on Plaintiff’s official-capacity claim. The claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose acts may fairly be said to represent official policy.” The police department at the time had no chief of police, and Officer Hall was the senior officer. The Tenth Circuit laid out the test to decide whether a government employee is a final policymaker whose actions can give rise to municipal liability. First, the employee must be constrained by policies not of his own making. Second, his decisions must be final. Finally, the policy decisions and actions must fall within the realm of the employee’s grant of authority.

The Tenth Circuit held that there was no evidence to indicate whether or not Officer Hall was meaningfully constrained by policies not of his own making, whether or not his decisions were final, or whether his actions fell within the realm of his grant of authority. Therefore, the Tenth Circuit held that Plaintiff failed to satisfy the municipal liability test. Simply because Hall was “in charge” before the new chief took office was not enough. The Tenth Circuit affirmed the district court’s grant of summary judgment on Plaintiff’s official-capacity claims.

The Tenth Circuit next addressed the claims against Defendants in their individual capacities. The Tenth Circuit held that because Defendants asserted qualified immunity, the burden shifted to Plaintiff to establish that the Defendants violated a constitutional right and that the right was clearly established at the time of the violation.

Plaintiff’s first claim was against Officers Hall and Bubla for violation of his Fourth Amendment right when they initially searched the shop without a warrant. The Tenth Circuit held that the search was conducted pursuant to consent. The Austins had actual or apparent authority to consent as both worked at the auto-repair business. Ms. Austin contacted police and both she and Mr. Austin were present when the officers were shown around the shop. Mr. Austin did not protest, and the Tenth Circuit held that this was non-verbal consent.

Next, Plaintiff argued that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the premises without a warrant or probable cause. The Tenth Circuit held that there was probable cause and therefore Plaintiff’s rights were not violated. Probable cause existed because of what the officers found during their initial search with the Austins, Plaintiff’s suspected criminal conduct, and what Mr. Austin had told the officers about his conversations with Plaintiff. Therefore, the Tenth Circuit held that the officers were justified in sealing the building.

Third, Plaintiff argued that Hall violated his Fourth Amendment rights by arresting him without a warrant. The Tenth Circuit held that the arrest was valid because Hall had probable cause to believe Plaintiff was fraudulently altering VIN Plates. The Tenth Circuit held that the factors justifying the warrantless seizure of the building also supported Plaintiff’s arrest.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with reckless insufficient information.” The Tenth Circuit stated that there only needs to be a “substantial probability” that the suspect committed the crime before making an arrest. The Tenth Circuit held that Plaintiff’s evidence did not dispute that there was a substantial probability. Further because the prior search was lawful due to consent, the Tenth Circuit held that there was probable cause for a warrant to search the shop based on the initial findings.

Fifth, Plaintiff argued that the officers exceeded the scope of the search warrant. The Tenth Circuit held that the first two ways alleged by Plaintiff were not supported by evidence. The third allegation was that the officers exceeded the scope by seizing an envelope found on the ground of the shop. The Tenth Circuit held that Plaintiff met his burden of showing that the officers were not entitled to qualified immunity on that issue. The warrant clearly specified what items were to be seized, and by seizing additional items, the officers acted unreasonably for Fourth Amendment purposes.

The Tenth Circuit next addressed the district court’s decision to disregard the affidavit purportedly signed by Mr. Austin and its holding that the attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. The Tenth Circuit held that is did not need to consider whether the district courts holding was accurate because even if the information from Mr. Austin’s purported affidavit was considered, it would not have created a material dispute of fact to defeat the Defendant’s assertion of qualified immunity. Therefore, the Tenth Circuit held that any error by the district court regarding Mr. Austin’s affidavit was harmless.

Finally, the Tenth Circuit held that the district court erred in dismissing Plaintiff’s state law claims with prejudice. Because the district court did not explain why the defendants were entitled to the state qualified immunity, the Tenth Circuit remanded the issue for further consideration by the district court.

In sum, the Tenth Circuit reversed the grant of summary judgment as to the seizure of the envelope, remanded for further proceedings on the state qualified immunity issue, and affirmed the district courts grant of summary judgment in favor of all Defendants on the remaining claims.

Colorado Supreme Court: District Court Properly Denied Motion to Suppress on Facts of Case

The Colorado Supreme Court issued its opinion in People v. Stock on Monday, July 3, 2017.

Fourth Amendment—Exceptions to Warrant Requirement—Consent Searches—Third-Party Consent.

The supreme court reviewed the court of appeals’ opinion reversing Stock’s convictions and remanding for a new trial. The court of appeals concluded that the trial court erred in denying Stock’s motion to suppress statements she made to a police officer inside the hotel room where Stock lived. The police officer had entered the hotel room after Stock’s father—who did not live in the hotel room—opened the door in response to the officer’s knock. The court of appeals concluded that suppression was required because Stock’s father lacked authority to consent to the officer’s entry. The supreme court concluded that the trial court properly denied the motion to suppress because, on the facts of this case, the officer’s limited entry into Stock’s hotel room, in her immediate presence and without her objection, did not violate Stock’s Fourth Amendment right to be free from unreasonable searches. The court therefore reversed the judgment of the court of appeals and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Drug Dog Search Illegal Where Warning Given for Speeding and Consent to Search Refused

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 milers per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going from California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

Colorado Supreme Court: Encounter with Police Deemed Consensual Under Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Shoen on Monday, June 5, 2017.

Fourth Amendment—Consensual Encounters.

In this case, the Supreme Court considered whether defendant’s encounter with

police, during which he confessed to possessing a controlled substance, was consensual or whether it constituted an impermissible seizure under the Fourth Amendment. The Court concluded that under the totality of the circumstances, the encounter was consensual. Accordingly, the Court reversed the trial court’s order suppressing evidence from the encounter, and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy ofThe Colorado Lawyer .

Colorado Court of Appeals: Law of the Case Doctrine Does Not Prohibit Officer from Requesting Warrant for Previously Illegally Obtained Evidence

The Colorado Court of Appeals issued its opinion in People v. George on Thursday, June 1, 2017.

Sexual Contact—Minor—Search—Suppression—Warrant—Independent Source Doctrine—Law of the Case Doctrine—Joinder—CRE 404(b)—C.R.S. § 16-10-301(3).

George was arrested on charges related to sexual encounters with underage girls A.R. and G.D. Following George’s arrest and inability to post bond, he was evicted from his apartment. The landlord had George’s car towed from the premises to an impound lot. The lead investigator obtained the towing company’s consent to search the car and instead of seeking a warrant, obtained the company’s consent to examine the GPS device in the vehicle. Data obtained from a forensic examination of the GPS device showed that George’s movements were generally consistent with the victims’ testimony about their meetings with him. George moved to suppress, challenging the car search and the examination of the GPS device. The court suppressed evidence obtained from examination of the device. Rather than appealing the suppression order, the prosecution directed the investigator to seek a search warrant for the GPS device from a different magistrate. When applying for the warrant, the investigator did not specifically refer to data obtained from examination of the GPS device nor disclose the suppression ruling. The warrant was issued and the GPS device was reexamined. George again moved to suppress. The court denied the motion to suppress based on the independent source doctrine. The court found that that the decision to seek the warrant had not been based on the fruits of the initial unlawful search and information from the search had not been presented to the magistrate as a basis for seeking the warrant. A jury convicted George of multiple offenses arising from his sexual contact with two young girls.

On appeal, the Attorney General argued that the data obtained from the initial warrantless search of George’s GPS device in his vehicle should not have been suppressed because the search was conducted in good faith. Because the Attorney General did not challenge the trial court’s consent ruling based on a question of law, the validity of the initial search was not properly before the court of appeals.

George argued on appeal that the trial court should have suppressed data obtained from the second examination of the GPS device because the first suppression order was the law of the case and an unchallenged order that applied the exclusionary rule. Here, had the towing company not asserted ownership of the GPS device and given its consent to examination, the investigator would have sought a warrant to search the device. Therefore, the investigator did not later seek a warrant based on the fruits of the warrantless search. Additionally, the investigator did not specifically refer to any data obtained from examination of the GPS device in the warrant application. Thus, the warrant at issue in the second suppression hearing raised a different issue—independent source—that was not and could not have been raised at the first suppression hearing, and the law of the case doctrine does not apply.

George also argued that the trial court erred in joining the cases involving A.R. and G.D. over his objection. Here, evidence related to A.R. and G.D. was sufficiently similar to establish a common plan or scheme under CRE 404(b) and C.R.S. § 16-10-301(3). Therefore, evidence from each case would be admissible in the other. Because George did not show prejudice, the trial court properly joined the trials involving A.R. and G.D.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Refusal to Consent as Evidence of Guilt Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. Sewick on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: DUI Suspect’s Refusal to Consent to Blood Test May Be Used as Evidence of Guilt

The Colorado Supreme Court issued its opinion in People v. Maxwell on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Blood Test Refusal in DUI Case Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. King on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.